§383-7 - Excluded service.

§383-7 Excluded service. (a) "Employment"shall not include:

(1) Agricultural labor as defined in section 383-9 ifit is performed by an individual who is employed by an employing unit:

(A) That, during each calendar quarter in boththe current and the preceding calendar years, paid less than $20,000 in cashremuneration to individuals employed in agricultural labor, including laborperformed by an alien referred to in subparagraph (C); and

(B) That had, in each of the current and thepreceding calendar years:

(i) No more than nineteen calendar weeks,whether consecutive or not, in which agricultural labor was performed by itsemployees, including labor performed by an alien referred to in subparagraph(C); or

(ii) No more than nine individuals in its employperforming agricultural labor in any one calendar week, whether or not the sameindividuals performed the labor in each week, including labor performed by analien referred to in subparagraph (C); or

(C) If such agricultural labor is performed byan individual who is an alien admitted to the United States to performagricultural labor pursuant to Sections 214(c) and 101(a)(15)(H) of theImmigration and Nationality Act;

(2) Domestic service in a private home, local collegeclub, or local chapter of a college fraternity or sorority as set forth insection 3306(c)(2) of the Internal Revenue Code of 1986, as amended;

(3) Service not in the course of the employing unit'strade or business performed in any calendar quarter by an individual, unlessthe cash remuneration paid for the service is $50 or more and the service isperformed by an individual who is regularly employed by the employing unit toperform the service. For the purposes of this paragraph, an individual shallbe deemed to be regularly employed to perform service not in the course of anemploying unit's trade or business during a calendar quarter if:

(A) On each of some twenty-four days duringthe quarter the individual performs the service for some portion of the day; or

(B) The individual was regularly employed asdetermined under subparagraph (A) by the employing unit in the performance ofthe service during the preceding calendar quarter;

(4) (A) Service performed onor in connection with a vessel not an American vessel, if the individualperforming the service is employed on and in connection with the vessel whenoutside the United States;

(B) Service performed by an individual in (oras an officer or member of the crew of a vessel while it is engaged in) thecatching, taking, harvesting, cultivating, or farming of any kind of fish,shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal andvegetable life, including service performed as an ordinary incident thereto,except:

(i) The service performed in connection with avessel of more than ten net tons (determined in the manner provided fordetermining the register tonnage of merchant vessels under the laws of theUnited States);

(ii) The service performed in connection with avessel of ten net tons or less (determined in the manner provided fordetermining the register tonnage of merchant vessels under the laws of theUnited States) by an individual who is employed by an employing unit which hadin its employ one or more individuals performing the service for some portionof a day in each of twenty calendar weeks all occurring, whether consecutive ornot, in either the current or the preceding calendar year; and

(iii) Service performed in connection with thecatching or taking of salmon or halibut for commercial purposes;

(5) Service performed by an individual in the employof the individual's son, daughter, or spouse, and service performed by a childunder the age of twenty-one in the employ of the child's father or mother;

(6) Service performed in the employ of the UnitedStates government or an instrumentality of the United States exempt under theConstitution of the United States from the contributions imposed by thischapter, except that to the extent that the Congress of the United States permitsstates to require any instrumentalities of the United States to make paymentsinto an unemployment fund under a state unemployment compensation law, all ofthe provisions of this chapter shall apply to those instrumentalities, and toservices performed for those instrumentalities, in the same manner, to the sameextent, and on the same terms as to all other employers, employing units,individuals, and services; provided that if this State is not certified for anyyear by the Secretary of Labor under section 3304(c) of the federal InternalRevenue Code, the payments required of those instrumentalities with respect tothat year shall be refunded by the department of labor and industrial relationsfrom the fund in the same manner and within the same period as is provided insection 383-76 with respect to contributions erroneously collected;

(7) Service performed in the employ of any otherstate, or any political subdivision thereof, or any instrumentality of any oneor more of the foregoing which is wholly owned by one or more states orpolitical subdivisions; and any service performed in the employ of anyinstrumentality of one or more other states or their political subdivisions tothe extent that the instrumentality is, with respect to the service, exemptfrom the tax imposed by section 3301 of the Internal Revenue Code of 1986, asamended;

(8) Service with respect to which unemploymentcompensation is payable under an unemployment system established by an act ofCongress;

(9) (A) Service performed inany calendar quarter in the employ of any organization exempt from income taxunder section 501(a) of the federal Internal Revenue Code (other than anorganization described in section 401(a) or under section 521 of the InternalRevenue Code), if:

(i) The remuneration for the service is lessthan $50; or

(ii) The service is performed by a fullyordained, commissioned, or licensed minister of a church in the exercise of theminister's ministry or by a member of a religious order in the exercise of dutiesrequired by the order;

(B) Service performed in the employ of aschool, college, or university, if the service is performed by a student who isenrolled and is regularly attending classes at the school, college, oruniversity; or

(C) Service performed by an individual who isenrolled at a nonprofit or public educational institution which normallymaintains a regular faculty and curriculum and normally has a regularlyorganized body of students in attendance at the place where its educationalactivities are carried on as a student in a full-time program, taken for creditat the institution, which combines academic instruction with work experience,if the service is an integral part of such program, and the institution has socertified to the employer, except that this subparagraph shall not apply toservice performed in a program established for or on behalf of an employer orgroup of employers;

(10) Service performed in the employ of a foreigngovernment, including service as a consular or other officer or employee of anondiplomatic representative;

(11) Service performed in the employ of aninstrumentality wholly owned by a foreign government:

(A) If the service is of a character similarto that performed in foreign countries by employees of the United Statesgovernment or of an instrumentality thereof; and

(B) If the United States Secretary of Statehas certified or certifies to the United States Secretary of the Treasury thatthe foreign government, with respect to whose instrumentality exemption isclaimed, grants an equivalent exemption with respect to similar serviceperformed in the foreign country by employees of the United States governmentand of instrumentalities thereof;

(12) Service performed as a student nurse in theemploy of a hospital or a nurses' training school by an individual who isenrolled and is regularly attending classes in a nurses' training schoolchartered or approved pursuant to state law; and service performed as an internin the employ of a hospital by an individual who has completed a four-yearcourse in a medical school chartered or approved pursuant to state law;

(13) Service performed by an individual for anemploying unit as an insurance producer, if all service performed by theindividual for the employing unit is performed for remuneration solely by wayof commission;

(14) Service performed by an individual under the ageof eighteen in the delivery or distribution of newspapers or shopping news, notincluding delivery or distribution to any point for subsequent delivery ordistribution;

(15) Service covered by an arrangement between thedepartment and the agency charged with the administration of any other state orfederal unemployment compensation law pursuant to which all services performedby an individual for an employing unit during the period covered by theemploying unit's duly approved election, are deemed to be performed entirelywithin the agency's state;

(16) Service performed by an individual who, pursuantto the Federal Economic Opportunity Act of 1964, is not subject to the federallaws relating to unemployment compensation;

(17) Service performed by an individual for anemploying unit as a real estate salesperson, if all service performed by theindividual for the employing unit is performed for remuneration solely by wayof commission;

(18) Service performed by a registered salesrepresentative for a registered travel agency, when the service performed bythe individual for the travel agent is performed for remuneration by way ofcommission;

(19) Service performed by a vacuum cleaner salespersonfor an employing unit, if all services performed by the individual for theemploying unit are performed for remuneration solely by way of commission;

(20) Service performed for a family-owned private corporationorganized for profit that employs only members of the family who each own atleast fifty per cent of the shares issued by the corporation; provided that:

(A) The private corporation elects to beexcluded from coverage under this chapter;

(B) The election for exclusion shall apply toall shareholders and under the same circumstances;

(D) The exclusion shall be irrevocable forfive years;

(E) The family-owned private corporationpresents to the department proof that it has paid federal unemploymentinsurance taxes as required by federal law; and

(F) The election to be excluded from coverageshall be effective the first day of the calendar quarter in which theapplication and all substantiating documents requested by the department arefiled with the department;

(21) Service performed by a direct seller as definedin section 3508 of the Internal Revenue Code of 1986;

(22) Service performed by an election official orelection worker as defined in section 3309(b)(3)(F) of the Internal RevenueCode of 1986, as amended;

(23) Service performed by an inmate or any personcommitted to a penal institution[; and]

(24) Domestic in-home and community-based services forpersons with developmental disabilities and mental retardation under themedicaid home and community‑based services program pursuant to title 42Code of Federal Regulations sections 440.180 and 441.300, and title 42 Code ofFederal Regulations, part 434, subpart A, as amended, and identified as chore,personal assistance and habilitation, residential habilitation, supportedemployment, respite, and skilled nursing services, as the terms are defined andamended from time to time by the department of human services, performed by anindividual whose services are contracted by a recipient of social servicepayments and who voluntarily agrees in writing to be an independent contractorof the recipient of social service payments unless the individual is anemployee and not an independent contractor of the recipient of social servicepayments under the Federal Unemployment Tax Act.

(b) None of the exclusions in subsection (a)shall apply to any service with respect to which a tax is required to be paidunder any federal law imposing a tax against which credit may be taken forcontributions required to be paid into a state unemployment fund or which as acondition for full tax credit against the tax imposed by the federalUnemployment Tax Act is required to be covered under this chapter. [L 1939, c219, §2(k)(6); am L 1941, c 304, §1, pt of subs 8; RL 1945, §4208; am L 1945, c19, §1; am L 1947, c 75, §1; am L 1951, c 191, §1(1), (2) and c 195, §1(2),(3); am L 1953, c 41, §1(2); RL 1955, §93-7; am L 1959, c 11, §1(b), c 222,§1(2), and c 232, §4; am L Sp 1959 2d, c 1, §27; am L 1961, c 81, §1 and c 141,§1; am L 1965, c 61, §1; am L 1967, c 51, §1; HRS §383-7; am L 1969, c 73, §§1,2; am L 1971, c 187, §2 and c 213, §2; am L 1973, c 120, §1; am L 1974, c 156,§1; am L 1977, c 148, §2; am L 1982, c 192, §1 and c 194, §2; gen ch 1985; am L1989, c 217, §2; am L 1990, c 284, §1; am L 1994, c 112, §2; am L 1996, c 223,§2 and c 306, §1; am L 1998, c 34, §1; am L 2003, c 212, §4; am L 2007, c 70, §3,c 97, §2, and c 259, §6]

Revision Note

Subsection (a)(24) redesignated pursuant to §23G-15(1).

Law Journals and Reviews

Relief for Manufacturers and Wholesalers: A Proposal toExclude Commissions Paid to Part-Time Sales Representatives from Hawaii's Unemployment Tax. II HBJ No. 13, at pg. 35.

The Lum Court and the First Amendment. 14 UH L. Rev. 395.

Case Notes

Under paragraph (9)(B), eligibility of a student-employee forunemployment insurance benefits rests on whether the "primary relationship"the student occupies with respect to the school, college, or universityinvolved is that of student or employee; under circumstances of the case, theprimary relationship claimant had to the university while claimant performedservices during the summer was that of a student of the university. 105 H.485, 100 P.3d 55.